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On 5 December 2016, the UN High Commission for Refugees (UNHCR) published a report entitled “Better Protecting Refugees in the EU and Globally”. In this 21-page document, the UNHCR mainly focuses on making concrete proposals on how to build a European asylum system which is more efficient and more responsive to the challenges of the “World refugee crisis”, while repeating at the same time some of the observations made to the EU over the past 2 years.
Building on elements of the existing Common European Asylum System (CEAS) and some of the reforms proposed by the Commission, the UNHCR makes several recommendations that are organised around four main objectives:
– An EU that is engaged beyond its borders
– An EU that is prepared to respond to possible future arrivals in significant numbers
– An EU that protects through a well-managed common asylum system
– An EU that integrates refugees
We will not dwell here on the considerations expressed in paragraphs 1 and 4 concerning access to the European territory, the special attention to be paid to the most vulnerable persons – including minors– and the necessary actions towards the integration of refugees. These various issues are already dealt with in the publications of the European Union Agency for Fundamental Rights, in almost identical words. The European Commission, likewise, never hesitates to raise those matters in the European Agenda on Migration.
However, as the European Commission’s proposals for the reform of the CEAS make one fear a deterioration in the rights of asylum seekers and a step-down in the protection that would be granted to them, AEDH finds it useful to examine on which aspects UNHCR stands out or conversely supports the reform contemplated.
The establishment of asylum “hotspots” on a lasting basis… or when the source of the problem is presented as a solution
UNHCR recommends to improve the European system’s productivity and to limit secondary movements by registering all asylum applications in a common registration system that would be based on EURODAC and accessible at EU-wide level.
For those countries located at the EU’s external borders and receiving as a result the largest number of persons seeking international protection, the procedure would be facilitated by the creation of pilot Registration and Processing Centres (RPCs). National authorities could receive support in the long term from various EU agencies in order to manage those centres.For the UN refugee agency, which has spent several months in the Greek hotspots, this system is not without merits. However, it has been heavily criticised by civil society.
The fact that EASO intervenes alongside national authorities – as well as in Italy and elsewhere – is obviously not sufficient to accelerate and streamline the processing of asylum applications. It will thus create deplorable living conditions for asylum seekers which are far removed from the specifications in the Reception Conditions Directive currently in force, and a permanent clogging of the European system.
Furthermore, such a geographical organisation of the asylum application is expected to maintain or even increase the disproportionate pressure on countries located at EU borders by transforming them, on a lasting basis, into hotspots responsible for managing the arrival of the majority of asylum seekers. UNHCR appears to be aware of that risk as it recommends the creation of a “sharing mechanism” that would be activated if the number of asylum seekers received by a Member State would exceed a certain percentage deemed fair by all Member States (the “reference share”). That mechanism, however, would not apply to manifestly well-founded or unfounded claims that would systematically be processed in the first country of arrival (see below).
Increasing the efficiency of the system through an extended use of accelerated procedures
According to UNHCR, improving the productivity of the European system – namely a system that will continue to face a large number of arrivals of persons seeking international protection – also involves a faster processing of asylum applications.
This echoes one major concern expressed by the UN refugee agency in December 2016 when it published the last version of its guidelines, and which has been summarized by the remarks made by the UNHCR’s Assistant High Commissioner for Protection, Voler Türk, during his presentation : “The idea that one has to be singled out and individually targeted to be a refugee is a myth. (…) The 1951 Refugee Convention, the cornerstone of our work, has always included refugees from war. But over the years it has been inconsistently applied, and some countries have required people fleeing war to prove they were individually targeted.”
In this spirit, the Agency, therefore, advises that all “manifestly well-founded” claims should be treated as priorities and before the implementation of the sharing mechanism, by the authorities of the first country of arrival.
This prima facie recognition of the need for protection of nationals coming from war-torn countries serves the legitimate aim of not delaying the granting of refugee status to those who have accumulated sufferings, and to avoid the useless backlog of asylum cases. UNHCR also indicates that this procedure would concern applications “linked to specific profiles that have been established as giving rise to a well-founded fear of persecution or serious harm owing to the situation in the country origin”, and that they would be dealt with promptly in order to allow rapid access to the procedure.
However, what is more surprising is the proposition to also apply the accelerated procedure to “manifestly unfounded” claims (except for vulnerable persons), still with the efficient objective of sorting out the “real” refugees seeking protection from the immigrants that should be returned.
It is well-known that UNHCR does not oppose the concept of “safe country of origin”, though underlining that it must be used with caution. The agency only recommends that this concept should be accompanied with safeguards to guarantee that requests for asylum are fairly examined and a suspensive right of appeal is ensured. UNHCR believes that each asylum applicant must have an effective opportunity to rebut the presumption of “safe country of origin”.
But the “unfounded” nature of an application does not necessarily stem from the “safe” nature of the asylum seeker’s country of origin. That qualification covers a very wide range of situations (for example, unusable fingerprints). Regrettably, however, at no time does UNHCR specify the criteria to be used in order to assess the ‘unfounded’ nature of an asylum application, nor does it provide a monitoring mechanism for its implementation by the Member States. It merely defines manifestly unfounded claims as “applications from persons who clearly have no valid claim to international protection based on established criteria or which are clearly fraudulent or abusive”. The vagueness of this definition might, however, justify an arbitrary and discriminatory treatment of claims on the grounds of limiting “abuses” or preventing saturation of identification centres. It is moreover surprising that the UNHCR does not recall the safeguards that should in any event govern the examination of such cases (legal assistance ; suspensive right of appeal…).
In short, there would be two procedures: a fast procedure based on a prima facie type of examination and used both for granting protection and rejecting unfounded applications; and a classical procedure consisting of an assessment on the merits.
In this framework, the “sharing mechanism” between the Member States would not apply to manifestly well-founded or unfounded claims that would systematically be processed in the first country of arrival. Only those persons whose claim is considered “normal” (i.e. neither founded or unfounded) would be directly distributed between the Member States, who would thus be responsible for examining their application.
Priority given to family reunion
For the UNHCR, family reunion – namely the possibility for asylum seekers to invoke, immediately after the registration phase, his or her family ties existing in a Member State – should be a priority criterion of transfer. Like FRA, the UN agency believes that this measure could be a way of responding to the objective of reducing secondary movements, which is one of the Commission’s high priority ; and to avoid situations, frequent under the Dublin III Regulation where asylum seekers are transferred from one Member State to another like a ping-pong ball.
For the moment, this framework is not the one that has been adopted by the Commission as the latter plans to examine family reunion applications only after the activation of the sharing mechanism. On this particular point, UNHCR intends to go further than the Commission and proposes a definition of qualifying links for family reunion purposes which is broader than the one provided for in the current Dublin Regulation, and broader than the one envisaged by the reform, as it wishes to include minor married children who are independent, adult children and the parents of an adult. UNHCR also claims that consular procedures should be simplified and that family reunion should be accessible to persons enjoying subsidiary protection under the same conditions as statutory refugees. Finally, UNHCR suggests that a revolving fund should be allocated to these operations.
In summary, if for certain points, such as family reunion or the integration of refugees, UNHCR attempts to push back the boundaries envisaged by the Commission, it is somewhat surprising that when it comes to the handling and processing procedures of asylum applications, the UN agency takes up some of the ideas already validated or envisaged by the reform of the European asylum system. Yet, the agency has been much more vigilant and critical on other occasions, underscoring the divergences in the implementation of the common system both in terms of reception conditions and procedures, emphasising the conditions governing the exercise by asylum seekers of their fundamental rights and calling upon States to fulfil their international obligations. It is therefore regrettable that the agency made no attempt to defend another vision of asylum, different from that which prevails today in the vast majority of Member States.
This is probably due to what appears to be the UNHCR’s primary concern: working towards the establishment of a European asylum system which is efficient and capable of quickly processing a great number of applications. But by over-focusing on this objective of enhanced productivity, there is a risk of reducing the issue of the exercise of the right of asylum – an issue that concerns a hundred of thousands of people – to a problem of logistical management. Hence, it is unfortunate that the UNHCR has not shown the “creativity” to which is aspires for Europe and has not developed a perspective more strongly “founded on principles of respect for fundamental rights, responsibility, solidarity and trust”.
 Read AEDH Analytical note: « Coercion and exclusion do not make for a fair asylum policy », 4 May 2016
 DIRECTIVE 2013/33/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 June 2013 laying down standards for the reception of applicants for international protection (recast): http://bit.ly/2n5qq6x
 HCR, Vision Paper, « Better Protecting Refugees in the EU and Globally », p. 15, note 25
 HCR, Vision Paper, « Better Protecting Refugees in the EU and Globally », p. 14, note 23
 European Commission, Proposal for a regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016) 270 final, 4 may 2016
 Op. cit., p. 2